IN THE SUPREME COURT OF BRITISH COLUMBIA
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Citation: |
1055249 B.C. Ltd. v. Grace Mtn. Land Company, Ltd., |
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2025 BCSC 1923 |
Date: 20250916
Docket: H-190209
Registry: Vancouver
Between:
1055249 B.C. Ltd.
Petitioner
And
Grace Mtn. Land
Company, Ltd.,
Herkenn Singh Kenny Braich also known as Kenny Braich,
and 0776423 B.C. Ltd.
Respondents
Before: The Honourable Justice Stephens
Oral Reasons for Judgment
(petitioner application for vacant possession order and a Writ of
Possession;
cross application for stay of execution)
In Chambers
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Counsel for the Petitioner: |
L.B. Morris |
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Counsel for the Respondents Grace Mtn. Land Company, Ltd., and Herkenn Singh Kenny Braich also known as Kenny Braich: |
A. Jiwaji |
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No other appearances |
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Place and Date of Hearing: |
Vancouver, B.C. August 7, 2025 and September 3, 2025 |
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Place and Date of Judgment: |
Vancouver, B.C. September 16, 2025 |
[1] THE COURT: On this chambers application made in a foreclosure proceeding, the petitioner, 1055249 B.C. Ltd. ("105"), in reliance on an order absolute coupled with an order for vacant possession issued in its favour by Associate Judge Robertson on May 22, 2024 (2024 BCSC 880) (the “Order Absolute”), applies for a further order for vacant possession with a deadline for possession, together with a writ of possession, because the respondents, Grace Mtn. Land Company, Ltd. and Herkenn Singh Kenny Braich also known as Kenny Braich (the “Respondents") have not yet vacated the subject property. The Respondents cross‑apply for a stay of execution of any such order requiring them to vacate the property if it is granted, pending the outcome of a Court of Appeal appeal, and in the alternative, seek an order that this court decline jurisdiction over these applications due to an extant BC Court of Appeal appeal proceeding.
[2] By way of background to this application, the Respondents did not file an appeal of the Order Absolute (and the associate judge's decision dismissing their application for an extension of the redemption period) to a judge of this court in the time prescribed by the Supreme Court Civil Rules [Rules], and a subsequent application by the Respondents for an extension of time to appeal the Order Absolute of Robertson A.J. was dismissed by Justice Jones of this court: see 1055249 B.C. Ltd. v. Grace Mtn. Land Company, Ltd., 2024 BCSC 1916 at para. 110 (the "Jones J. Decision"). In the same reasons, Jones J. denied an application by the Respondents for an order for a stay of execution of the order of Robertson A.J., made May 22, 2024, pending the hearing and determination of an appeal from the Order Absolute to this court: see paras. 107–11.
[3] An important feature of the background and legal and factual matrix of these applications is that subsequently, on May 5, 2025, the Court of Appeal granted leave to appeal from the Jones J. Decision (the "CA Appeal"): 2025 BCCA 92; and further unreported reasons of Justice Edelmann of the Court of Appeal dated May 5, 2025 (the “Edelmann J.A. May Reasons”). The existence of the CA Appeal raises an issue as to, in this court's view, which court should decide the relief sought on these two applications. This gives rise to consideration of s. 17 of the Court of Appeal Act, R.S.B.C. 1996, c. 77, which permits or requires this court to decline jurisdiction in certain circumstances where an application is in respect of matters relating to an appeal to the Court of Appeal: Court of Appeal Act, s. 17.
[4] This case involves foreclosure proceedings concerning approximately 64 acres of land located in Mission, British Columbia (the "Subject Lands"). The Subject Lands are comprised of six individual titles.
[5] The factual background of this foreclosure dispute has been outlined in other reasons and I do not propose to repeat them. I refer generally to the reasons at 2025 BCCA 92 at paras. 2–12, my previous reasons for judgment in 2023 BCSC 2339, and the reasons in the Jones J. Decision at paras. 3–32.
[6] As noted, on May 22, 2024, Robertson A.J. dismissed the Respondents' application for an extension of the redemption period and granted 105 an Order Absolute which included an order for immediate vacant possession: 1055249 BC Ltd. v. Grace Mtn. Land Company, Ltd., 2024 BCSC 880 at para. 87.
[7] There is evidence before me that on August 8, 2024, 105 submitted the Order Absolute to the New Westminster Land Title Office and the application was entered on August 21, 2024, and that 105 is currently the registered owner of the Subject Lands and the Respondents are not registered owners of the Subject Lands. Mr. Braich and his wife nevertheless continue to reside on two of the six parcels of the Subject Lands which is used as a hobby farm.
[8] The evidence of Ms. Chan, the director of 105, is that she paid approximately $86,000 in 2023 and 2024 delinquent property taxes on behalf of 105, to avoid a tax sale, that were owing on the Subject Lands as of February 2025. She deposes that there remain about $132,000 of further property taxes, penalties, and interest outstanding.
[9] While Ms. Chan further deposes that she understands that the City of Mission has indicated that they intend to "pursue a tax sale" of the Subject Lands in September 2025, "if a portion of the outstanding property taxes are not paid", (para. 7 of the Chan Affidavit #5), I find that this evidence, including the email at Exhibit A, was vague in terms of what precisely might happen and when. And I note that during the hearing of this application, and despite 105's additional concerns about not being able to insure the Subject Lands, 105 proposed that any further order for vacant possession give 30 days for the Respondents to vacate the Subject Lands. While Ms. Chan deposes that she does not know if or how she will be able to pay all these taxes without the ability to complete the share purchase or use the Subject Lands, she does not depose that she is unable to pay a portion of the property taxes to avoid a tax sale.
[10] Returning to the history of prior decisions in this matter and the course of proceedings, I reiterate that in the Jones J. Decision, Jones J. denied to stay the order of Robertson A.J. dated May 22, 2024: at para. 111. This is a very similar type of stay of execution relief to what is now sought before me on the Respondents' application.
[11] Following the Jones J. Decision, the parties appeared in the Court of Appeal before Justice Fisher on an application for a stay of the Order Absolute that I understand was adjourned. Following this, the parties consented to an order dated February 26, 2025, for vacant possession with a term that after approximately 60 days, on April 30, 2025, 105 could rely on a writ of possession, which was granted by Justice Sharma of this court. Subsequently, following the granting of leave to appeal to the Court of Appeal on May 5, 2025, on June 16, 2025, that consent order for vacant possession and a writ of possession made by Sharma J. was set aside by consent on the prior agreement of the parties that if leave to appeal was granted by the Court of Appeal, the consent order for vacant possession would be set aside by consent.
[12] The prior vacant possession and writ of possession order made by Sharma J. having been set aside by consent, 105 now brings the application before me on notice to the Respondents for an order for vacant possession and a writ of possession.
[13] 105's notice of application seeks:
1) an order for vacant possession in the form attached as Schedule A to the notice of application; and
2) a writ of possession in the form attached as Schedule B.
[14] The Schedule A order sought for vacant possession has four paragraphs seeking the following relief:
· First, an order or declaration that the Respondents are in breach of the Order Absolute;
· Second, that the Respondents are directed to deliver vacant possession of the Subject Lands and premises to the petitioner or their duly authorized agent effective at 12:01 p.m. on a date to be determined by the court (which 105 proposed to be 30 days from this Court's decision);
· Third, that if the Respondents, or any one of them, fail to deliver vacant possession of the lands to the petitioner or agent of the petitioner as directed, the petitioner may rely on a writ of possession also granted at the same time in the form attached to the order as Schedule A (and being Schedule B to the notice of application); and
· Fourth, that the petitioner be granted leave to make an application to this court by way of telephone conference or desk order for advice and directions or further relief, although 105 did not pursue this relief at the second day of the hearing.
[15] The Schedule B writ of possession is substantially in the form of Form 52 of the Rules which, if granted, is in terms which would command a sheriff to promptly enter the lands and cause the petitioner 105 and their agents to have possession of it and also includes a seize and sell provision. I note that Form 52 of the Rules contemplates a writ of possession be signed by a registrar of the court.
[16] At the hearing, 105 submitted it was seeking the writ of possession to be granted on the same day as the further order for vacant possession, although alternatively sought the vacant possession order with an ability of 105 to seek from the registrar a writ of possession in the form of Schedule B after the time period for vacant possession had elapsed. This process, 105 submits, follows R. 13‑2(11) and what was done in Parihar v. Royal Bank of Canada, 2024 BCCA 368 at para. 19.
[17] In the Respondents' notice of application filed August 20, 2025, which is in essence a cross‑application, they seek:
1. An order for a stay of execution on an order for vacant possession or writ of possession, pursuant to the Order Absolute of Associate Judge Robertson pronounced on May 22, 2024 (the “Order Absolute”), until such time that the appeal of Justice Jones's decision dated September 6, 2024, is dismissed, or in the alternative until such time that this honourable court sees fit; or
2. ln the further alternative, an order that this proceeding relates to an appeal and must be before the Court of Appeal pursuant to the Court of Appeal Act, R.S.B.C. 1996, c. 77, s. 17.
[18] Regarding para. 2 of the relief sought, the Respondents clarified that "this proceeding" in that paragraph includes both 105's application for vacant possession or a writ of possession order, and the Respondents' application for a stay of execution. The Respondents submit that if this Court decides 105's application for vacant possession and a writ of possession, it should also decide the Respondents' stay application. Conversely, if this court decides one of these applications should be before the Court of Appeal, then they submit both should be heard by the Court of Appeal and this Court should decline jurisdiction over both 105's application and the respondents' application for a stay of execution.
[19] Three issues arise on these applications:
1) Should an order for vacant possession with a deadline and a writ of possession be granted?
2) Should a stay of execution of an order for vacant possession and a writ of possession be granted pending the CA Appeal or some further time period as set by this Court?
3) Each of Issue 1 and 2 also require this court to consider whether it should decline jurisdiction to decide the issues in this application due to s. 17 of the Court of Appeal Act.
[20] The Order Absolute includes an order for vacant possession which is relied on by 105 in this application. 105 submits that a further order for vacant possession should be granted, as well as a writ of possession.
[21] A writ of possession has been described as "the instrument utilized to enforce an order for the recovery or delivery of possession": Tignish Credit Union Ltd. v. Murphy, [1993] 1 P.E.I.R. 347, 1993 CanLII 2916 (S.C.).
[22] In CIBC Mortgages Inc. v. Ravelo, 2015 BCCA 284 [Ravelo], the Court of Appeal affirmed the finding that "the writ of possession was something that followed upon the order absolute of foreclosure", noting in that case there was “simply no basis for an appeal of the order of writ of possession because the legal basis for the order absolute is unassailable; as the bank has achieved an order absolute, it is entitled to possession of the property”: paras. 11–12.
[23] In British Columbia, the procedural requirements for obtaining a writ of possession are set out in R. 13‑2, which sets out specific rules to obtain a "writ of possession" and also a "writ of execution" of which a writ of possession is an example, and I quote the following rules:
Rule 1‑1
Definitions
(1) In these Supreme Court Civil Rules, unless the context otherwise requires:
…
"writ of execution" includes a writ of seizure and sale, a writ of sequestration, a writ of possession and a writ of delivery and any subsequent writ that issues to give effect to these writs, and also includes a warrant or other process of execution issued out of any court in British Columbia that has jurisdiction to grant and issue that process.
…
Rule 13‑2
…
Order for recovery or delivery of land
(3) An order for the recovery or the delivery of the possession of land may be enforced by writ of possession in Form 52.
… Production of order before execution
(11) A writ of execution must not issue without the production to the registry of a copy of the order on which the writ is to issue.
Endorsement of writ
(12) A writ of execution must be endorsed with the name and address of the lawyer or person causing it to be issued.
Issue of writ of sequestration, possession or delivery
(13) A writ of sequestration, a writ of possession or a writ of delivery must not be issued unless there has been filed proof satisfactory to a registrar that,
(a) in the case of an order, the order sought to be enforced
(i) has been served on the person against whom the order is sought to be enforced, and
(ii) has not been complied with, or
(b) in the case of a document, issued under an enactment, that on being filed in the court may be enforced as if it were an order of the court, the document
(i) has been filed in the court,
(ii) has, before or after being filed in the court, been served in accordance with the enactment or these Supreme Court Civil Rules on the person against whom the order is sought to be enforced, and
(iii) has not been complied with.
[24] The Court of Appeal in Gajie v. Lam, 2016 BCCA 225 at para. 34, referred to these rules and held that, as is clear from these provisions, no judicial authority is needed to cause the issuance of a writ of possession. In that case, the Court of Appeal stated that the landlord, which had obtained an order for possession, "could have caused the issuance simply by demonstrating to the registrar that it had an order against [the tenant] that had not been complied with": at para. 34.
[25] Further, and while of no statutory force, I also note there is a Supreme Court Registrars’ Newsletter with questions and answers about certain rules and registry practice, which includes the following commentary in regard to the granting of a writ of possession following the issuance of an order absolute:
A registrar may issue a writ of possession based on an order absolute of foreclosure pursuant to Rule 13‑2(13)(a) as there is no condition precedent to the granting of the writ.
[26] As can be seen, a writ of possession can be issued as a desk order by a registrar in an appropriate case. However, I am of the view it can also be issued by a judge of this court, or by a direction to the registrar to issue such a writ, as was apparently done by a judge of this court in Gajie at para. 18. 105 submitted that instead of seeking a desk order from a registrar without notice, it has chosen to bring an application for a writ of possession to a judge of this court on notice to the Respondents.
[27] A notable feature of 105's application is that although the Order Absolute already included a term for immediate vacant possession, 105 now seeks not simply a writ of possession but a further order for vacant possession with a deadline date for vacant possession, following which a writ of possession would issue. I have been provided no case where such an order was granted following the issuance of an order absolute that already includes an order for immediate vacant possession.
[28] However, such an order for vacant possession with a deadline was referred to, without criticism, by the Court of Appeal in Parihar at para. 19 in the context of an order approving the sale of property (albeit not following an order absolute). The Court of Appeal said:
[19] On December 6, 2023, Associate Judge (formerly Master) Bouck granted (1) an order approving the sale of the Property to the purchasers for the sum of $679,900, (2) a vesting order; and (3) an order for vacant possession on January 25, 2024 (the “Approval of Sale and Vesting Order”). If vacant possession was not delivered on that date, the Order allowed RBC to apply for a writ of possession from the Registrar, without further order.…
[29] There are also several examples of similar types of deadline‑based vacant possession orders, at times coupled with an order for enforcement by writ or order of possession, which have been issued by judges of this court in other contexts:
a) Salinger v. Nicola Mortgage Corp., 2025 BCCA 99 at para. 5 (following approval of sale and foreclosure);
b) Bath v. 593144 B.C. Ltd., 2024 BCSC 1335 at paras. 45–47 (in a residential tenancy context, the court ordering vacant possession in 30 days and ordered at para. 47: "If the property is not vacated in accordance with the terms of this order, the defendant is entitled to apply for a Writ of Possession by desk order pursuant to R. 13-2(13) and in Form 52 of Appendix A of the Supreme Court Civil Rules against the plaintiff and any other persons occupying the property without further order of this Court or notice.");
c) Watson v. Strong, 2014 BCSC 754 at para. 61 (in estate context, vacant possession order issued with a deadline with a writ of possession also issued with delayed enforcement);
d) Sadgrove v. Sadgrove, 2022 BCSC 86 at para. 117 (in real estate litigation, an order for vacant possession with deadline and a writ of execution with enforcement delayed for 91 days); and
e) Gajie at para. 18(the Court of Appeal describes a decision of this court which had directed the registrar to issue a writ of possession).
[30] Section 17 of the Court of Appeal Act provides that:
Proceedings related to appeal must be in court
17 Subject to any other enactment, if an appeal or application for leave to appeal is brought, all proceedings in respect of matters relating to the appeal must be in the court.
[31] This provision is engaged once appeal proceedings are filed in the Court of Appeal: Rae v. Gadalla, 2023 BCSC 2235 at para. 22.
[32] Once engaged, s. 17 has been described as requiring that "[a]ll matters pertaining to the appeal must be determined by the Court of Appeal": LLS America LLC (Trustee of) v. Dill, 2017 BCSC 1782 at para. 7 [LSS America].
[33] However, s. 17 "does not confer an absolute obligation on trial judges to decline jurisdiction," but rather "that trial judges have discretion to decline jurisdiction on the basis that the issues are better left to the Court of Appeal": LLS America at para. 10, citing Bar BX Department Store v. Non Marine Underwriters (Attorney), [1986] B.C.J. No. 1376, 1986 CarswellBC 622 (C.A.).
[34] Roeder v. Lang Michener Lawrence & Shaw, 2004 BCSC 80 at para. 19 holds that s. 17 "does not provide an iron clad rule leaving this Court with no jurisdiction to hear further applications", but rather:
… gives jurisdiction to the Court of Appeal regarding matters under appeal only and not to matters which were not dealt with by the trial judge. In any event, I am satisfied that the trial judge always maintains a discretion to deal with matters arising out of the trial …
Citing Dyk v. Protec Automotive Repairs Ltd., 41 C.P.C. (4th) 317, 1997 CanLII 2114 (B.C.S.C.).
[35] For example, matters relating to costs may be heard by the trial judge. It is a matter of discretion: see Pavlis v. HSBC Bank Canada, 2010 BCSC 147 at para. 8.
[36] Ultimately, while there are some circumstances in which an application should be brought to the Court of Appeal pursuant to s. 17, a trial judge has discretion as to this determination and "s. 17 should not be so strictly interpreted as to prevent the trial judge from adjudicating matters that flow directly from the original proceeding while an appeal on other grounds is pending": Roeder at para. 19.
[37] In Njoroge v. Canadian Union of Public Employees, Local 15, 2022 BCSC 88 at para. 36, Justice Ahmad stated that "s. 17 of the Court of Appeal Act does not confer upon a Supreme Court judge the jurisdiction to stay proceedings pending appeal" and instead, "that jurisdiction is conferred under limited circumstances by the Supreme Court Civil Rules … or by its inherent jurisdiction, confirmed by s. 8 of the Law and Equity Act": citing Roeder at paras. 25–26.
[38] In my view, despite the commencement of the CA Appeal from the decision of Jones J., I find I should decide 105's application seeking a further order of vacant possession together with a writ of possession.
[39] The relief sought in 105's application flows directly from the Order Absolute, which already includes an order for immediate possession which has not been stayed or set aside. That Order Absolute was granted on May 22, 2024, over one year ago.
[40] The Respondents did not persuade me that the application for a writ of possession or further order for vacant possession is better addressed by the Court of Appeal. The process of seeking a writ of possession is embodied in the rules of this court.
[41] Further, granting an order for vacant possession or a writ of possession follows directly from the Order Absolute granted by an associate judge of this court. It is, in this sense, a matter arising out of the proceeding, or flowing directly from the original proceeding, and such applications are not precluded by s. 17: Roeder at para. 19.
[42] I do not therefore decline jurisdiction to hear to hear 105's application due to s. 17 of the Court of Appeal Act.
[43] The evidence before me is that, following the issuance of the Order Absolute, 105 is now the registered owner of the Subject Lands.
[44] The Order Absolute of Robertson A.J. orders the respondents to "immediately deliver up to the petitioner 105 vacant possession of the lands."
[45] Mr. Braich has not given over vacant possession of the Subject Lands to 105.
[46] On this application, the Respondents oppose vacating the property, arguing hardship to them if they had to do so.
[47] However, case authority from the Court of Appeal holds that a party is entitled to possession after the granting of an order absolute: Ravelo at paras. 11–12; Gajie at para. 34. 105 has been granted an Order Absolute which has not been stayed or set aside, and the Respondents remain in possession. In my view, 105's request for a further order for vacant possession flows directly from the Order Absolute which has already been granted.
[48] In these circumstances, in my view, a further order for vacant possession giving the Respondents 40 days to vacate must issue. 105 proposed 30 days, but I am satisfied 40 days is an appropriate time period to vacate the property in the circumstances, and note that the evidence from Ms. Chan did not persuade me that allowing 40 days would result in a tax sale of the Subject Lands in the interim.
[49] There is case authority standing for the proposition that this court may grant an order for vacant possession with a deadline after which time, if possession is not given over, a writ of possession can be issued: see Bath at paras. 45–47.
[50] I acknowledge that Mr. Braich wishes to stay on the Subject Lands, that he has resided at Ferndale with his wife for approximately 10 years, and he has animals on part of the lands which are described as a hobby farm. But in my view, in light of the Order Absolute, a further order providing 105 vacant possession must be issued, and there is no identifiable legal basis to deny 105 such an order. While a previous consent order for vacant possession and a writ of possession was set aside by consent following the May 5, 2025, decision granting leave to appeal, Mr. Braich has now had notice of 105's application to enforce the Order Absolute. The Subject Lands are no longer owned by the Respondents, and Mr. Braich has had notice of this application for over two months. Further, I am making the order for vacant possession with 40 further days from the date of this order for Mr. Braich to vacate the Subject Lands.
[51] In my view, that an order for vacant possession is already included in the Order Absolute does not preclude me from making a further deadline‑based order for vacant possession. This is a just and fair exercise of the court's power to make a further order for vacant possession with a clear deadline for vacant possession for the Respondents.
[52] I do not, however, grant the declaration of breach sought in Schedule A of 105's notice of application (para. 1 at Schedule A). There is no application for contempt of court in the notice of application before me, and I decline to make any order or declaration of breach of the Order Absolute as sought by 105.
[53] I further do not grant an order permitting telephone or desk order applications for advice and directions (para. 4 of Schedule A of 105’s notice of application), which was not pursued on this application by 105.
[54] Further, I do not grant the writ of possession at this time, but order that 105 be entitled to apply for a writ of possession after 40 days if vacant possession is not given by that time, such that if vacant possession is not delivered on that date, the order will allow 105 to apply for a writ of possession from the registrar without further order: Parihar at para. 19; Bath at paras. 45–47.
[55] While there is authority that a writ of possession could also be issued at this time with a suspended date (Watson at para. 61; and Sadgrove at para. 117), I prefer to require 105 to comply with the process under the Rules and seek a writ of possession in the usual way after 40 days (that is, October 26, 2025), as per R. 13‑2: Bath at para. 47.
[56] The Respondents argued that a stay of execution should be granted over any order granting vacant possession of the subject lands or writ of possession. They contend the test for a stay is met, including that there is merit to their appeal from the Jones J. Decision to the Court of Appeal. They rely on R. 13‑2(31) of the Supreme Court Civil Rules and the three‑part test for a stay under RJR‑MacDonald Inc. v. Canada (Attorney General), [1994] 1 S.C.R. 311 at 334, 1994 CanLII 117.
[57] The Respondents submit that their appeal to the Court of Appeal of the Jones J. Decision is prima facie meritorious: notice of application at para. 18. They submit that "the applicants necessarily had to show merit in the appeal of the Order Absolute to obtain leave to appeal Jones J.'s order declining the extension": at para. 19. They submit that, "Edelmann J.A. concluded that there was an arguable case that one of the grounds for the Order Absolute was erroneous": at para. 24. They submit that "given the low threshold of whether there is a serious question to be tried and the findings of Edelmann J.A. on May 5, 2025, the [Respondents] have established the first prong of the Stay Test": at para. 25.
[58] The Respondents also submit that if a stay is refused, they will suffer irreparable harm and that, among other things “Mr. Braich and his wife will be forced to vacate their personal home, which is also a hobby farm with a series of animals on the properties” and “[t]he logistics of vacating the premises then potentially moving back into them are burdensome”: at para. 26. They submit that “[i]t is also practically more efficient to allow the Appeal to run its course than it is to force Mr. Braich, his wife, and their animals out of their residence and potentially unwind the effects of that after the Appeal has concluded”: at para. 33.
[59] Mr. Braich has deposed in his Affidavit #6 made August 6, 2025, that “[f]inding alternative accommodation is difficult given the number of animals we own and the surrounding areas being restricted by zoning bylaws”: at para. 8.
[60] The Respondents submit that I need not decide whether there is merit or not to their appeal for purposes of considering if a stay of execution should be granted, and that a finding has already been made by Edelmann J.A. that there is some merit to their appeal. Edelmann J.A. stated, in granting leave, that the respondents (appellants at the Court of Appeal) had “raised an arguable case that the chambers judge (and by extension the associate judge) erred in assessing the significance of the $10,050,000 debt to the question of whether granting the order absolute would result in a windfall to 105”: Edelmann J.A. May Reasons at para. 4.
[61] However, that finding was made by Edelmann J.A. on a leave to appeal application, not for the purposes of considering a stay of execution. Edelmann J.A. found he was "satisfied it is in the interests of justice for leave to be granted" (at para. 5) but expressly stated at para. 5:
To be clear, nothing in my reasons should be taken as expressing a view on the ultimate outcome of the appeal, nor should they be taken as expressing a view on whether a stay should be granted should one be sought in the circumstances.
[Emphasis added.]
[62] 105 also submits that I should consider the stay application and it need not be decided by the Court of Appeal. 105 submits that I should decide the stay application and dismiss it. They submit there is no merit to the appeal of Jones J., the Respondents would not suffer irreparable harm, the balance of convenience favours the petitioner, and the Respondents have not provided an undertaking as to damages.
[63] Both the Respondents and 105 submit that I should decide the stay application, since it would be more efficient to do so, rather than having to go before the BC Court of Appeal on a separate application.
[64] In my view, the Respondents' stay of execution application should be decided by the Court of Appeal. This is because any assessment of the merit of the appeal to the Court of Appeal from the Jones J. Decision of this court as part of a stay test is better left for the Court of Appeal, and not this Court. Edelmann J.A. expressly stated in his reasons granting leave to appeal on May 5, 2025, that those reasons should not "be taken as expressing a view on whether a stay should be granted should one be sought in the circumstances": at para. 5.
[65] The decisions relied on by the Respondents in support of this Court granting a stay of proceedings in this case are, in my view, distinguishable: Derencinovic v. 7 West Homes Ltd., 2022 BCSC 276, was an application for a stay of a trial judgment pending resolution of an extant counterclaim; Coburn v. Nagra, 2001 BCCA 607, was a decision by the Court of Appeal concerning a stay of execution by the Court of Appeal; Rotor Maxx Support Limited v. Air Palace Co., Ltd., 2023 BCSC 2182, concerned a decision by this court to adjourn an application pending a determination by the Court of Appeal on the appeal of an order in that proceeding (at para. 35(1)); and Capital Now Inc. v. Munro, 2022 BCSC 1297, was a decision of this court granting the stay of an order of a master following this court granting an extension of time to appeal the master's order to this court (at paras. 1, 4, 9, 15–40). Notably, in Capital Now, this court assessed the merit of the proposed appeal of a master's order when considering the first branch of the stay test, but in doing so this court was assessing the merit of the appeal to this court (not to the Court of Appeal): see Capital Now at para. 16.
[66] In other words, in Capital Now, this court considered the merits of the appeal to this court, applying the stay application test. However, in the case before me, the appeal to which argument about the stay application relates is an appeal from the Jones J. Decision of this court to the Court of Appeal. I note that in Gajie, the Court of Appeal granted a stay over an order of vacant possession of this court pending an appeal to the Court of Appeal: at paras. 1, 13.
[67] Further, as a secondary consideration, the Jones J. Decision, which is on appeal to the Court of Appeal, includes a determination dismissing the Respondents' request for a stay of the Order Absolute: at para. 111. The Respondents’ now request to me to stay a further order for vacant possession (with a deadline) and a writ of possession is functionally the same type of relief as that denied by Jones J.: i.e., the Respondents seeks to stop the legal effect of the Order Absolute which included an order giving vacant possession to 105, pending an appeal.
[68] Jones J. of this court denied an application by the Respondents to stay the order dated May 22, 2024, and the Order Absolute, and the stay of execution relief now sought by the Respondents appears to be functionally the same stay relief. That the CA Appeal is from the Jones J. Decision which, among other things, denied a stay of the Order Absolute on which 105 now relies for a further order for vacant possession, is an additional reason why the stay relief now sought is better addressed by the Court of Appeal.
[69] The s. 17 jurisprudence does give latitude for this court to decide certain applications, despite a pending appeal to the Court of Appeal: LLS America at para. 10. However, that does not apply here, in my view, where the stay application involves the application of the stay test -- including that of considering the merits of the CA Appeal -- to an order which flows from an Order Absolute which is closely related to the decision from this court from which leave to appeal has been granted and on which there is a pending BC Court of Appeal appeal.
[70] Both parties argue it would be more efficient for me to decide the Respondents' stay of execution application than having to set down a separate application before the Court of Appeal. I am cognizant of considerations of efficiency, but such considerations would likely often, if not always, arise when s. 17 of the Court of Appeal Act may have application.
[71] In my view, R. 1‑3 of the Rules must be interpreted in light of s. 17, in appropriate cases, where this court finds an application made before this court would be better addressed by the Court of Appeal due to a pending appeal to that court.
[72] In my view, the purposes of "[s]ecuring the just, speedy and inexpensive determination of a proceeding on its merits" in R. 1‑3 must, in this case, be interpreted and applied in light of s. 17 of the Court of Appeal Act which informs which court should decide an application where there is a pending appeal to the Court of Appeal.
[73] The time period of 40 days until the writ of possession can be sought by 105 gives some time for the Respondents to seek a stay of execution in the Court of Appeal.
[74] The Respondents argued that if a stay of execution is not granted, it will make their appeal moot (notice of application at para. 29). In my view, however, this is a matter best left for the Court of Appeal to assess.
[75] I add that I decline to assess 105's argument that the Respondents will ultimately not win their appeal to the Court of Appeal, and even if they did, they would not then succeed on any appeal to this court from the Order Absolute (if one were authorized by the Court of Appeal), and so the stay application should be dismissed, since the Respondents are bound to ultimately fail to obtain title to the Subject Lands. Again, in my respectful view, the merits of the Respondents' CA Appeal are better left for the Court of Appeal to assess, and I decline to speculate about what might or might not happen after that appeal is decided by the Court of Appeal.
[76] I acknowledge that in some procedural contexts, courts consider whether to stay proceedings pending an appeal being made to a higher court: see e.g. Conseil Scolaire Francophone de la Colombie-Britannique v. British Columbia (Education), 2013 BCSC 751 (application to stay an action pending a further appeal to the Court of Appeal in a related proceeding); Grewal v. Mann, 2021 BCSC 1995 (denying a stay of a BC Supreme Court arbitration appeal until after the Court of Appeal decided an appeal of the BC Supreme Court leave to appeal decision); British Columbia (Attorney General) v. Trial Lawyers Association of British Columbia, 2022 BCCA 289 at paras. 4–5 (BC Court of Appeal considering a stay of its own judgment pending an application for leave to the Supreme Court of Canada); and Malii v. British Columbia, 2025 BCSC 1129 at paras. 33–39 (denying an application to stay the BC Supreme Court's proceedings pending an appeal to the Supreme Court of Canada); see also Canada (Attorney General) v. Lau, 2002 BCSC 87 at para. 25(c) (citing C.T.F. Holdings Ltd. v. Flint Motors Ltd., 1996 CanLII 2391, [1996] B.C.J. No. 1526 (S.C.)).
[77] However, this is not such a context given the close connection between the consideration of the merit of the appeal of the order of Jones J., the merit of an appeal of the Order Absolute to which the Jones J. Decision relates, and the application of the stay test argued before me; and the fact that the Jones J. Decision, which is on appeal to the Court of Appeal, had, among other things, dismissed an application for a stay of the Order Absolute. In my view, it does not matter for the s. 17 analysis that the Order Absolute is not, strictly speaking, on appeal to the Court of Appeal.
[78] In sum, I decline jurisdiction pursuant to s. 17 of the Court of Appeal Act over the Respondents' stay application at para. 1 of their notice of application on the basis that the issues on that stay application are better left to the Court of Appeal: Roeder at para. 24.
[79] I dismiss the stay relief on jurisdictional grounds due to s. 17 of the Court of Appeal Act, subject to any further decision of the Court of Appeal pursuant to s. 17 of the Court of Appeal Act deciding that this application should instead be heard and decided by this court: see e.g., Ontario (Attorney General) v. Restoule, 2024 SCC 27 at para. 59, and Restoule v. Canada (Attorney General), 2022 ONSC 7368 at para. 1.
[80] I reject other arguments raised by the Respondents opposing the granting of a further order for vacant possession or writ of possession.
[81] I do not find 105's application to be similar to the application before Justice LeBlanc for an order that 105 is not a creditor in the bankruptcy proceedings, which I understand LeBlanc J. adjourned on January 29, 2025 pending the outcome (or abandonment) of the CA Appeal. I do not accept that 105's application should be adjourned until Mr. Braich's appeal of the Order Absolute is determined, and that a consistent approach aligned with LeBlanc J.'s order should be employed in this regard: see application response of the Respondents at paras. 9, 13 of Part 5.
[82] Further, there is nothing from the hearing before Fisher J.A. in October 2024, the transcript of which was before me, which persuades me to deny 105 the relief sought, or to decide the Respondents' stay application.
[83] The Respondents submitted that they are only living on part of (two of the six parcels of) the Subject Lands, and proposed there might be conditions on any stay which is granted. And in their application response, the Respondents submit that Mr. Braich is amenable to paying occupational rent pending the outcome of the CA Appeal: at para. 57 of Part 4. It is not necessary for me to consider this argument since, while I have made a further order for vacant possession, I decline to decide the stay application. Nor is it necessary for me to decide if Mr. Braich has paid occupational rent in the past pursuant to a June 13, 2023 Order, a matter on which the parties disagree.
[84] Finally, there were objections made by the Respondents as to the admissibility (on 105's application) of certain parts of Ms. Chan's Affidavit #4 (paras. 4, 6–9, 15), which sought to demonstrate irreparable harm to 105, on the grounds that it was hearsay and that 105's application seeks a final order. This objection may have been overtaken, in whole or in part, by the making of an affidavit of Mr. Yue (Affidavit #2 made August 28, 2025). However, it is not necessary for me to decide these admissibility issues. I do not rely on these parts of Ms. Chan's affidavit evidence asserting prejudice, which are not necessary for 105 to obtain, as I have ordered, a further order for vacant possession with an ability to seek a writ of possession after 40 days; such an order flows directly from the Order Absolute.
[85] Relatedly, there were arguments made before me by 105, and by the Respondents, in the context of the stay application, over whether 105 has experienced and is experiencing harm or prejudice, irreparable or otherwise, following the issuance of the Order Absolute arising from the Respondents not vacating the Subject Lands; and whether the Respondents would suffer prejudice and irreparable harm if a stay is not granted (e.g., at para. 4 of Part 5 of the application response, the Respondents argue "[t]he prejudice to Mr. Braich in removing him from the Grace lands is high, whereas the prejudice to 105 is not."; see also paras. 7 and 10 of Part 5). In the manner I have disposed of these applications, it is not necessary for me to make any findings about these issues of asserted irreparable harm, since: (a) I have decided I need not make findings about irreparable harm to 105 in order to grant the order for vacant possession; and (b) have declined to decide the Respondents' application seeking a stay of execution.
[86] In my view, a deadline‑based vacant possession order flows directly from the Order Absolute granted by Robertson A.J. (which has not been stayed or set aside) and should issue, requiring vacant possession in 40 days, together with an order that if the Subject Lands are not vacated in accordance with the terms of this order, that 105 is entitled to apply for a writ of possession by desk order pursuant to R. 13‑2(13) of the Supreme Court Civil Rules against the Respondents without further order of this court.
[87] 105 submitted before me that it is time to "end the battle" with the Respondents, relying on para. 106 of the Jones J. Decision, and that I should also dismiss the Respondents' application for a stay of the vacant possession order. The Respondents, for their part, submit that the dispute is not yet over since the BC Court of Appeal has granted leave to appeal from the Jones J. Decision denying an extension of time to appeal the Order Absolute.
[88] In my view, whether 105 should be prevented from exercising its rights to possession of the Subject Lands flowing directly from the Order Absolute pending an appeal to the BC Court of Appeal of a decision denying an extension of time to appeal the Order Absolute , and because of the existence of the CA Appeal, is a matter best left for the BC Court of Appeal to decide.
[89] In summary, I order that the order for vacant possession sought be granted with a deadline of 40 days for vacant possession, expiring October 26, 2025, but I do not grant that part of the order at Schedule A at para. 1 seeking a declaration of breach of the Order Absolute or at para. 4 permitting applications for advice and direction by telephone or desk order to the court; and I do not grant the writ of possession at this time as sought in para. 3 of Schedule A, but order that if the Subject Property is not vacated in accordance with the terms of this order, 105 is entitled to apply for a writ of possession by desk order pursuant to R. 13‑2(13) and in Form 52 of Appendix A of the Supreme Court Civil Rules against the Respondents without further order of this court.
[90] I further decline to decide the Respondents' application for a stay of execution due to s. 17 of the Court of Appeal Act.
[91] Therefore, I make the following orders.
[92] With respect to 105's application filed July 7, 2025, I order:
1) Paragraph 1 of the notice of application is granted with the exception that paras. 1 and 4 of Schedule A is not granted; paragraph 2 of Schedule A inserts a deadline of October 26, 2025; and para. 3 of Schedule A, instead of the words "the Petitioner may rely on the Writ of Possession, also granted this day", shall include the words, "if the lands are not vacated in accordance with the terms of this order, 105 is entitled to apply for a Writ of Possession by desk order pursuant to Rule 13‑2(13) and in Form 52 of Appendix A of the Supreme Court Civil Rules against the respondents without further order of this Court."
2) Paragraph 2 of the notice of application, seeking a Writ of Possession in the form of Schedule B, is not granted at this time, and a Writ of Possession may instead be sought pursuant to my order at paragraph 1.
[93] With respect to the Respondents' application filed August 20, 2025, I order:
3) Paragraph 1 of the notice of application is dismissed on the grounds this Court declines jurisdiction to decide this relief pursuant to s. 17 of the Court of Appeal Act.
4) Paragraph 2 of the notice of application, as it relates to the relief sought in 105's notice of application, is dismissed.
[94] That is my decision. Are there any submissions about costs?
[SUBMISSIONS ON COSTS]
[95] THE COURT: All right, I have heard counsel's submissions on costs. I am going to make a decision on costs at this time. And court clerk, for your purposes, I will be making decisions on each of the two applications; Reasons for judgment on costs as follows.
[96] Counsel for 105 has sought an order that a lump sum costs award of $1,500 payable by the Respondents, that is the Grace Mtn. Land Company, Ltd. and Mr. Braich, be granted in favour of 105 forthwith in respect of both of the applications, as a collective amount. That order is opposed by the Respondents.
[97] I have considered counsel's submissions and I make the following decision, and I decide costs separately for each application. In respect of 105’s application of July 7, 2025, I find that 105 has been substantially successful on that application, which was opposed. However, I am not prepared to, in light of the extant appeal to the Court of Appeal, order costs payable forthwith at this time and, given that application comprised one‑half of the matters decided in these reasons, I will grant, in the July 7, 2025 application, costs payable by the Respondents, Grace Mtn. Company and Mr. Braich, of a $750 lump sum amount to 105 in the cause. When I say in the cause, I note that there is an extant appeal of the Court of Appeal.
[98] With respect to the stay application, my assessment is different in the sense that both parties invited me to decide the stay application. Both parties said that I should decide it in their favour. I have declined to do so and, in my view, it is appropriate in the circumstances that, in respect of the application filed August 20, 2025, that each party bear their own costs in respect of that application.
[99] So to summarize, Court Clerk, and counsel: on the vacant possession / writ of possession application of July 7, 2025, costs payable by the Respondents (as I have defined them) to 105 of $750 in the cause. And on the August 20, 2025, application for a stay, I order that each party bear their own costs.
[100] CNSL A. JIWAJI: Justice, I did have one point of clarity I just wanted to raise. Not on the costs issue, but I think some of the language that you used on the stay application, you said dismissed, and I just want to clarify, you are not making any findings on the stay application, and you're just declining jurisdiction.
[101] THE COURT: I am declining jurisdiction, yes.
[102] CNSL A. JIWAJI: Thank you.
[103] THE COURT: I will leave to counsel how they wish to draft the order.
[104] CNSL A. JIWAJI: Yes.
[105] THE COURT: But I did not dismiss it on the merits. I declined to decide it.
[106] CNSL A. JIWAJI: Thank you.
“Stephens J.”